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Abstract:
With the stunning growth of international trade in the last half century, the distinction between public international law and private international law has become increasingly blurred. The effect of this definitional blurring is of particular importance in the area of state and government succession. Yet post-Cold War succession events clearly illustrate that international law doctrine on state and government succession does not reflect state practice.

With this in mind, Professor Tai-Heng Cheng's book, STATE SUCCESSION AND COMMERCIAL OBLIGATIONS, proposes a reconceptualization of state and government succession doctrine. The book manages to address this complex subject from a variety of detail-specific angles without losing sight of the larger, complex picture of globalization. It also recommends a new legal approach to state and government succession that is more consistent with actual state practice, and it meshes this approach, to the extent possible, with existing doctrine.

This book review first summarizes and discusses the book's key principles and observations, and then analyzes Professor Cheng's reconceptualization of state and government succession from two perspectives not explored in the text - namely, economic theory concerning the identification and allocation of rights, and virtual state theory - that might be useful avenues for further inquiry. The review closes with comments regarding how Professor Cheng's reconceptualization might be applied to the 2003 invasion and subsequent reconstruction of Iraq, and future succession events as well.

succession, state succession, government succession, international law, debt, odious debt, commercial obligation, globalization, vienna convention, iraq

Abstract:
Over the past twenty years, enormous technological, economic, and political changes have transformed the U.S. economy and the application of U.S. export controls. Technological advances in recent years, for example, have revolutionized both the types of commercial products available and the ways in which they can be exported. Software and technical data have become articles of commerce in their own right, and because they are non-physical items they can be exported electronically by e-mail and server downloads.

Over the same time period, many of the world's economies have grown more interconnected in terms of trade, investment, and personnel, and foreign direct investment levels have surged. As a result, international business is now characterized by an enormous volume of transborder internal company activity.

In terms of political change, the world's political order has been dramatically restructured due to the end of the Cold War and the People's Republic of China's (PRC) inexorable shift toward market economy principles. With the world's geopolitical structure no longer bipolar in nature, traditional U.S. export controls based primarily on the country of destination have become less important (with embargoed countries such as Cuba and Iran being notable exceptions) and certainly more difficult to apply than in the past. Stated differently, during the Cold War it was far easier to determine what export destinations (such as Soviet bloc countries or the PRC) were undesirable for U.S. national security purposes. However, since the end of the Cold War it has become more difficult to ascertain whether exports to these (or other) destinations are problematic based solely or primarily on the destination in question.

An important result of these technological and economic developments is that activities defined under U.S. law as exports have increased exponentially, far in excess of economic growth. Certainly the largest increase has been in non-physical exports of technology and software. Furthermore - and of key importance to maintaining an effective national system of export controls for commercial items - exports are not limited to business transactions. Rather, exports can include such activities as inter-company shipments, as well as internal company communications that send technology or software abroad - or in some cases even convey it domestically to a national of a foreign country. Depending on the circumstances, Internet postings of software also can be considered exports. As a result, the current level of non-physical exports is extraordinarily high.

Yet despite these revolutionary changes, the basic structure of U.S. export controls on commercial items has remained unaltered for decades, and the United States continues to rely on a Cold War era statute as the basis for commercial export controls. This statute - the Export Administration Act of 1979, or EAA - is outdated and badly in need of reform, and in fact there has been animated discussion in recent years over what a new EAA should look like.

To date, however, this debate has ignored the controls' most fundamental structural aspect: that they invariably look to individual export transactions as the events to be regulated. The regulation of individual export transactions is so embedded in the current U.S. system of export controls that many observers see it as an indelible feature of the export control landscape. To be sure, it is a conceptually straightforward approach that worked well in previous decades, but the application of this approach to today's large volume of non-physical exports results in an export control system that focuses too much on the mechanism for control and not enough on the reasons for which these controls were implemented. In short, form threatens to supersede substance, and the system meets neither the EAA's expressly stated goal of facilitating trade nor its primary goal of promoting U.S. national security objectives by prohibiting problematic exports.

In order to meet these two seemingly incompatible goals, this article recommends that U.S. commercial export controls focus primarily on the identity of the exporter and the scope of the exporter's export activities, and only secondarily on the exporter's specific export transactions. This account-based approach to export controls would help reduce many current export compliance difficulties faced by U.S. exporters, especially those engaged in non-physical transactions, by deemphasizing the often artificial and burdensome focus on discrete export transactions and thus helping to facilitate exports by reducing transaction costs. At the same time, an account-based approach also would accurately reflect activities taking place in international commerce and allow them to be vetted for the end user and end use concerns that have become so important to U.S. commercial export controls, thus addressing U.S. national security concerns.

The account-based approach could be implemented in one of two principal ways. First, and ideally, the current statutory structure of U.S. commercial export controls could be revamped to implement this approach. Similar changes could be made to foreign nations' commercial export control laws and to multilateral export control regimes in which the United States and many of its primary trading partners participate. Alternatively, the account-based approach could be implemented through modifications to the existing regulatory structure, even absent any modifications to the existing (and less than optimal) statutory framework for U.S. commercial export controls. Such an approach would be an interim solution, but certainly a positive step in the right direction - and in fact, such an approach arguably would be more consistent with what is already occurring on a de facto basis under U.S. export control laws for commercial items.

Export Controls Technology, International Business

Abstract:
Supporters of a liberal international economic system have long regarded regional organizations such as free trade areas and customs unions with ambivalence. On one hand, these organizations can have a stronger political base than multilateral institutions such as the WTO, and this can make trade liberalization and integration easier to achieve and maintain. On the other hand, regional organizations potentially could splinter the global economy, since their trade liberalization and economic integration effects are generally limited to bloc members.

However, in recent years two new and very different forms of integration have arisen in Asia and the Pacific Basin. These approaches significantly depart from the traditional paradigm of discriminatory blocs. The first approach is a micro approach, in which small subregional groupings (often called growth triangles) have emerged. These are not preferential trade blocs per se, but rather are transnational areas that function primarily as diverse, unified bases for integrated investments and related activities by multinational firms. Growth triangles may be created by market forces or sponsored by governments, but even the latter generally are not formal governmental organizations. Interestingly, participants in the major growth triangles include not only states, but also provinces and other subnational areas. Each growth triangle offers the potential to economically integrate its transnational area, but if a triangle grows and becomes more formalized it also might present the same type of splinterization and discriminatory trade concerns as traditional free trade areas and customs unions.

The second approach is a macro approach characterized by efforts aimed at super-regional economic integration. The Asia-Pacific Economic Cooperation forum (APEC), for example, includes members from Asia, Oceania, and North and South America. The non-governmental Pacific Economic Cooperation Conference (PECC)-which consists of a grouping of business leaders, scholars, and government officials from each member country - also spans those four continents. Neither PECC nor APEC is a treaty organization imposing binding obligations on its members; rather, each deals mainly in research, consultation, and coordination. In addition, neither organization has become an economic bloc in the traditional sense. Rather, both APEC and PECC have worked, in their respective ways, for open regionalism. This distinctive concept is at odds with the traditional preferential view of regional integration, and it holds the potential to both further liberalize trade among organization members and simultaneously extend the benefits of trade liberalization to non-members.

These experimental forms of economic integration (and especially the macro approach of APEC and PECC) thus may have significant effects on the international economic system, including the promotion of global integration. In particular, the consensual nature of the macro approach encourages participation and dialogue, and this in turn facilitates cooperation and agreements in areas of common interest that (even when relatively mundane) can reduce transaction costs and encourage greater regional trade. These new forms of integration also might be useful in other areas of the world, such as Latin America, where repeated attempts at formation of a Free Trade Area of the Americas (FTAA) have been unsuccessful and where existing, traditional regional blocs have been marginally successful at best.

In the years since this article was written, Asia and the Pacific Basin have undergone significant economic upheaval and slowed growth. Yet the regional economic integration efforts described in this article have continued and have worked (sometimes at a modest pace) to further regional economic integration. This article therefore continues to offer a useful conceptual discussion of these organizations and their radically different nature from more traditional regional trade organizations.

regional organizations, integration, international trade, WTO, World Trade Organization, free trade area, customs union, APEC, PECC, Asia Pacific

Abstract:
In the ongoing debate about how to improve law school teaching, there is a general consensus that law schools should do more to train junior faculty members how to teach. While this may be the case, this consensus inadvertently leads to an implicit assumption that is not true - that in all facets of law teaching, junior faculty are at a disadvantage compared to senior faculty. In fact, there are aspects of law teaching for which junior faculty can be better suited than their senior colleagues. This Article reviews scholarship concerning law teaching and identifies three teaching factors that generally favor junior law faculty: generational proximity to the law school student body; recency of law practice experience as junior practitioners; and lower susceptibility to the problem of conceptual condensation - extreme depth of subject matter knowledge that makes it difficult to see subjects from the students' perspective.

This Article employs the economic concepts of (a) economies of scale or productive efficiency and (b) absolute and comparative advantage to suggest how these junior faculty advantages could be harnessed to improve law school teaching. With respect to productive efficiency, it is suggested that greater intra-faculty dialogue can increase a law faculty's output of effective teaching. Currently, senior faculty members often provide assistance or advice to junior faculty in areas of senior faculty expertise or advantage - such as depth of knowledge in a course's subject matter - but this is largely a one-way flow of information. However, if junior faculty were also to provide insight and advice to senior faculty regarding areas of junior faculty advantage, the quality of law school teaching might be significantly enhanced. Junior-senior faculty dialogue might be promoted through a variety of means, including faculty workshops and even perhaps teaching reviews of senior faculty by junior faculty.

With respect to the concepts of absolute and comparative advantage, this Article suggests that law school teaching could be improved through the specialization of teaching functions. Instead of professors individually teaching separate courses, professors might coordinate their teaching (that is, team-teach) across a number of courses in the law school curriculum, as a means to more effectively harness the respective strengths (and minimize the respective weaknesses) of junior and senior faculty in the classroom. Through the leveraging of junior faculty advantages, overall law school teaching might be significantly improved. This Article concludes by discussing the implications of these recommendations for law school culture in general and for the legal profession as a whole.

law schools, law teaching, classroom, pedagogy, junior faculty, law and economics, comparative advantage, absolute advantage

Abstract:
In November 2005, President Bush attended the fourth Summit of the Americas in Argentina, where he sought support for liberalized pan-American trade and the formation of the long-stalled Free Trade Area of the Americas, or FTAA. Not surprisingly, he made little progress on the FTAA, which the United States has unsuccessfully sought to form for more than a decade. Venezuelan President Huge Chavez continued his vitriolic attacks on the United States (and President Bush in particular), and while leaders of other democratic Central and Latin American nations largely distanced themselves from Chavez they did not endorse formation of an FTAA anytime soon. On the other hand, these countries did at least agree to continue discussing the possibility and structure of an FTAA.

It is all too clear, then, that while progress toward an FTAA is stalled, many Central and Latin American nations recognize the enormous potential benefits of a pan-American regional trade organization. Yet real progress toward an FTAA eludes both the United States and its western hemispheric trading partners. In fact, there have been multiple pan-American summits and ministerial meetings on the elusive FTAA since 1994, and yet an FTAA has yet to be formed. This is certainly a discouraging state of affairs, and it underscores the need for a new approach to regional integration in the Americas.

In the attached article, which the author co-wrote several years ago with Professor Ken Abbott at Northwestern University School of Law, we recommended that an FTAA be formed not on the traditional regional trade agreement principles of exclusion and preferential treatment, but rather on the newer policy of open regionalism. Given the continued lack of FTAA progress over recent years, our article remains as pertinent today as when originally published.

Open regionalism is different than traditional approaches to regional trade organizations in two critical ways. First, traditional regional trade agreements (such as customs unions and free trade areas) are generally discriminatory in nature, in that they favor members over non-members in terms of market access, trade barriers such as tariffs and quotas, and/or investment restrictions. An open regional agreement, in contrast, offers the potential for improved market access and reduced trade barriers but does not discriminate against outside parties. Stated differently, an open regional agreement is characterized by the key trait of non-exclusivity, which precludes bias against non-members. From the standpoint of the global trading system, then, open regional organizations are preferable to more traditional models, even if the latter are generally consistent with GATT.

Second, and perhaps more important for purposes of the FTAA, open regionalism is characterized by consensual decision making. Agreements among member states are reached and progress is made only in areas in which states can reach consensus. While agreement by consensus necessarily slows progress on difficult matters, open regionalism's consensual approach can help encourage dialogue among western hemisphere nations that in the past (and even present) have been suspicious, antagonistic, and even hostile in their economic relations. While the ongoing efforts to form an FTAA serve this purpose to an extent, they have focused on establishing a more traditional regional trade organization, rather than on identifying areas of common interest for immediate cooperation.

Progress in areas of common agreement thus would be more likely under an open regionalism approach. Matters of consensus could lead to greater cooperation in limited areas - which in turn could result in greater trade and integration, further economic development, and the reduction of economic disparity among member states. In this way, open regionalism could lead to a virtuous cycle for furthering such laudable goals as economic development, greater economic integration, improved living standards for the poor, and greater political cooperation - all without the hurdles facing formation or expansion of traditional trade agreements.

To date, the primary example of open regionalism in action has been the Asia-Pacific Economic Cooperation Forum (APEC), which is a broad, consensually-driven organization comprised of over twenty countries across the Pacific rim who are positioned at different levels of economic development. APEC members currently include, for example, the United States, the People's Republic of China, Vietnam, and even Peru. By engaging in dialogue on a variety of common trade matters, APEC countries have helped foster closer economic ties and cooperation among disparate member states that need such dialogue but that would have been unlikely to form a successful regional trade organization along traditional lines, given their enormous economic structural differences.

The open regionalism approach embodied by APEC has much to offer for Central and Latin America, in light of this region's different levels of national economic development and liberalization. A western hemispheric FTAA based on traditional tenets of exclusivity and (at least partially) non-consensual decision making is currently difficult at best - and impossible at worst - given the divergent needs and issues of the region's national economies. However, an FTAA based on the principle of open regionalism could overcome these difficulties and pave the way for further cooperation and dialogue. The consensual nature of open regionalism would mean that states could join the FTAA without fear of being railroaded into policies or positions against their will or self-interest. The establishment of a formal structure would ensure ongoing regional dialogue on matters of importance and could lead to agreement and cooperation in areas of consensual agreement. Even if areas of agreement are mundane at first, such agreement could help lead to greater levels of trade, a climate of cooperation, and reduced disparity among member economies, which would further regional economic integration. Furthermore, the benefits of the FTAA would be extended to non-members as well, which would benefit the world trading order. Progress in hemispheric cooperation and integration might be slow at first given the consensual nature of open regionalism, but slow advances would be preferable to the current lack of progress.

Economic integration, Latin America, NAFTA, APEC, FTAA, free trade

Abstract:
Following the September 11, 2001, terrorist attacks, the U.S. government implemented a number of inbound cargo security programs it described as "pushing the border outward" or "expanding [the U.S.] perimeter of security." Are these statements rhetorical flourish, or do these programs materially affect international cargo trade? This article argues that far from being mundane or rhetorical, these cargo security programs are transforming how U.S. borders operate from both a conceptual and practical perspective. Specifically, by moving certain aspects of border functionality to locations well-removed from the physical U.S. border, these programs make U.S. regulation of inbound trade significantly more extraterritorial. These changes affect not only U.S. national security, but also the very patterns and growth of international trade in goods.

In order to fully explore this thesis, this article first summarizes these programs and analyzes them through the lens of early- and mid-twentieth century political geography, which is useful for evaluating the defensive rhetoric and actual structure of these programs. The jurisdictional and sovereignty aspects of these forward deployment efforts are then examined, with particular emphasis on efforts to multilateralize these cargo security programs. This article concludes that the extraterritorial aspects of these programs can be legally justified on a number of grounds. Multilateral support or consensus is the most readily apparent of these rationales, but even absent such multilateral support these programs can be defended on other bases, including that of unilateral, implied consent to these programs by U.S. trading partners and importers.

The article concludes by addressing the impact of these programs on global trade. In particular, these cargo security programs can be seen as permanently transforming U.S. inbound trade regulation from a primarily domestic regime to one for which extraterritoriality is a central feature. In the short term, this shift has led to greater U.S. control or influence over foreign commercial and regulatory activities, which is of course significant. In the long term, however, the effect of these programs will depend upon whether they become truly multilateral in application or remain largely bilateral or unilateral in effect. If they remain bilateral or unilateral, the short term status quo of greater U.S. extraterritorial reach will remain in place. If full multilateralization occurs, however, these programs could reduce or erase many of the current distinctions between domestic cargo shipments and international cargo shipments, as foreign regulatory regimes directly affect both international and U.S. domestic cargo shipments. As discussed in more detail in the article, such multilateral interconnectivity would significantly alter the nature of international trade in cargo.

International Trade, International Law, National Security, Cargo, Customs, Import, Border, Jurisdiction, Sovereignty, Extraterritoriality, Political Geography

Abstract:
The subject of "preferential trade agreements" (PTAs) has been the focus of significant discussion in recent years. Much of the attention has concerned the economic desirability of preferential trade liberalization versus multilateral trade liberalization. While the debate about the benefits and dangers of trade liberalization via PTAs is an important one, it tends to overlook or mask other, more basic questions about PTA formation, scope, and membership. The thesis of this Article is that decisions regarding PTA formation, the precise PTA forms used, membership, and the sectoral scope of PTAs are, at their core, decisions about deepening existing economic relationships versus broadening to form new ones. That is, these and other PTA decisions operate within a larger framework in which each PTA decision is, ultimately, a choice between deepening a state's existing economic relationships to make them more fully integrative, versus broadening a state's formal transnational economic ties to include new ties that are less deep, in an integrative sense. This Article explores the legal and policy implications of this conceptualization of PTAs, with primary focus on U.S. PTA activity.